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Right to Privacy is Fundamental

“the right of people to make personal decisions regarding intimate matters; under the Common Law, the right of people to lead their lives in a manner that is reasonably secluded from public scrutiny, whether such scrutiny comes from a neighbour’s prying eyes, an investigator’s eavesdropping ears, or a news photographer’s intrusive camera; and in statutory law, the right of people to be free from unwarranted drug testing and Electronic Surveillance”

The great poet wrote, Arthur R Miller wrote (his poem is also quoted in a Supreme Court of India Judgement on privacy) thus:

“DEPRIVACYAlthough we feel unknown, ignored As unrecorded blanks,Take heart! Our vital selves are stored In giant data banks,Our childhoods and maturities,Efficiently compiled,Our Stocks and insecurities,All permanently filed,Our tastes and our proclivities,In gross and in particular,Our incomes, our activitiesBoth extra-and curricular.And such will be our happy stateUntil the day we dieWhen we’ll be snatched up by the greatComputer in the Sky”

The Supreme Court of India has taken it a notch higher. It ruled on the 24 August 2017 that the right to privacy is “integral part of right to life and personal liberty”. It was unanimously decided by the nine-bench judge.

The judgement of the court came amidst efforts by the Unique Identification Authority of India(UIAI) to collect bio-data from every Indian and issue an Aadhaar. Aadhaar is a 12-digit unique-identity number issued to all Indian residents based on their biometric and demographic data. To be issued with the identity number, the UIAI collected ten finger prints and two iris scans from an individual.

At first, it was said that the Aadhaar is voluntary. However, state agencies and many other institutions in the private sector made it mandatory before a service could be given. It became a mandatory requirement to open a bank account, to access benefits from the government, to access some education services, filing tax returns, among very many other services. This sort of made the Aadhaar mandatory, yet it was said to be voluntary.

As of today, Aadhaar is the world’s largest biometric ID system and it has over 1.171 billion enrolled members. As at the time the judgement of the supreme court of India was delivered, over 99% of Indians aged 18 and above had been enrolled in Aadhaar. World Bank Chief Economist Paul Romer, in the March 2016 issue of The Hindu Business Line described Aadhar as “the most sophisticated ID programme in world”.

Several human rights groups opposed this collection of data. They argued that the data being collected would be used to profile citizens, and that there was no warranty given that the database would not be breached. Some even questioned why the government needed all that information about its citizens

The Supreme Court established the test of the principle of Proportionality and Legitimacy to help to ascertain if indeed the information required is relevant. It is a four-way test:

Is the action sanctioned by law?

Is the proposed action necessary in a democratic society for a legitimate aim?

Is the extent of such interference proportionate to the need for such interference?

Are there procedural guarantees against abuse of such interference.

Any information collected must confirm to the above principle.

In their lengthy judgement (547 pages), it was held that

“… recognizing a zone of privacy is but an acknowledgement that each individual must be entitled to chart and pursue the course of development of their personality. Rohinton F. Nariman,J., recognizes informational privacy which recognizes that an individual may have control over the dissemination of material which is personal to him. Recognized thus, from the right to privacy in this modern age emanate certain other rights such as the right of individuals to exclusively commercially exploit their identity and personal information, to control the information that is available about them on the ‘world wide web’ and to disseminate certain personal information for limited purposes alone”

The court also stated that the right to privacy is absolute and should be limited subject to the principle of proportionality only under the following circumstances:

Other fundamental rights: The right to privacy must be considered in relation to its function in society and be balanced against other fundamental rights.

Legitimate national security interest

Public interest including scientific or historical research purposes or statistical purposes

Criminal Offences: the need of the competent authorities for prevention investigation, prosecution of criminal offences including safeguards against threat to public security;

The unidentifiable data: the information does not relate to identified or identifiable natural person but remains anonymous. The European Union Regulation of 2016 31 refers to ‘pseudonymisation’ which means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person;

The tax etc: the regulatory framework of tax and working of financial institutions, markets may require disclosure of private information. But then this would not entitle the disclosure of the information to all and sundry and there should be data protection rules according to the objectives of the processing. There may however, be processing which is compatible for the purposes for which it is initially collected.

We have previously written about the right to privacy.

India is undoubtedly doing so much to develop its jurisprudence. Do not be surprised when courts in East Africa catch on and start making such land mark decisions.

The court summarised their judgement thus: “Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new”

This article was written by our Law Review Columnist, Samali Kukundakwe, for our weekly law newsletter, The Deuteronomy. To contact Samali, write to her on samali@bitalaadvocates.com. To receive The Deuteronomy in real time, click HERE